Commercial planning news, May 2018
01 May 2018
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Headline news |
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Government’s design quality conference
On 25 April, MHCLG hosted a conference, ‘Achieving Well-Designed Places’, which brought together ‘key stakeholders’ from the Government and practice to design quality. The Secretary of State and the Housing Minister both delivered speeches at the event.
The conference follows the Housing White Paper’s references to driving up the quality and character of new development’, supporting custom build homes, encouraging ‘better use of Local Development Orders and area-wide design codes’, and good design being ‘fundamental to creating healthy and attractive places’. These policy approaches are reflected in the draft NPPF, which has a chapter devoted to ‘Achieving well-designed places’.
Prior to the conference, MHCLG issued a press release which said Ministers would:
‘[…] call on industry to embrace the latest innovations to make sure we are building the good quality homes that our country needs.’
It was intended that the conference attendees, including local authority planners, developers and design professionals would ‘share their expertise to ensure how homes look becomes just as important as the number delivered’.
The Housing Minister focused on the importance of good design and it being intrinsic to the success of a scheme rather than being solely about appearance, and referred to the Government’s view that well-designed schemes, brought forward with community support, are less likely to be opposed by that community.
He also emphasised that high quality design need not necessarily cost more, which he considered to be:
‘[...] one of the key points that we need to demonstrate through research as government, and you need to demonstrate in your practice in terms of rolling out and deploying modern methods of construction.’
The Minister referred to high density schemes that have good community facilities being associated with increasing positive social interaction. He also promoted examples of international design policy, including the New South Wales ‘Better Placed’ policy:
‘[…] it is quite similar with our view that design is not just what a place look like, but also how it works and feels to the people already living in it.’
Ministry of Housing, Communities & Local Government, Government champions innovation in bid to build well-designed homesMinistry of Housing, Communities and Local Government, speech delivered by Secretary of State for Housing Communities & Local Government at the Design Quality ConferenceMinistry of Housing Communities & Local Government, speech delivered by Housing Minister Dominic Raab at the Design Quality ConferenceGovernment Architect New South Wales, Integrated Design Policy ‘Better Placed’
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Quote of the month |
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This doesn’t, in any way, involve the government dictating what good design looks like, but it makes it clear that it must be rooted in and it must be backed by the local communities.
[…]
And it’s the job of developers and their designers to respond positively to these expectations; harnessing the talents of skilled professionals [...]
Housing Minister, Dominic Raab, speaking at the Design Quality Conference, 25 April 2018 |
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Lichfields Use Classes Order table update reflects April 6 permitted development rights’ amendments
Lichfields’ ‘Guide to Use Classes Order in England’ has been updated.
As reported in the April edition of the England Planning News and in force since 6 April, the principle changes made by the latest amendment Order for permitted development rights (PDRs) relate to the extension of the change of use right from Class B8 to residential, and to Class Q for changing the use of agricultural buildings to residential.
Lichfields, Guide to Use Classes Order in EnglandThe Town and Country Planning (General Permitted Development)(England)(Amendment) Order 2018The Town and Country Planning (General Permitted Development)(England)(Amendment) Order 2018, Explanatory Memorandum
Legislation now in force requiring councils to review local plans every five years
Since 6 April, local planning authorities (LPAs) have been required to review their local plans (and statements of community involvement) every five years, starting from the date of adoption.
The Town and Country Planning (Local Planning) (England)(Amendment) Regulations 2017 (see Reg. 4) are accompanied by a lengthy Explanatory Memorandum. It states:
- the amendment Regulations set a period of five years within which an authority should undertake an assessment of whether its development plan documents (and its Statement of Community Involvement) remain up to date - ‘this will help ensure that plans are kept up to date’;
- where an authority reviews a document but decides not to update it, they must publish their reasons;
- ‘moving’ the policy expectation in the National Planning Policy Framework (NPPF) and in the national Planning Practice Guidance (PPG) - that authorities should regularly review their plans to respond flexibly to changing circumstances - into legislation ‘will strengthen existing expectations, ensuring that all areas have up-to-date plans in place which address the needs of the local community and accurately reflect changes to local circumstances’; and
- The changes build on the Local Plans Expert Group (LPEG) report (March 2016) and the subsequent Housing White Paper consultation (February 2017) and responses.
The Town and Country Planning (Local Planning)(England)(Amendment) Regulations 2017 and Explanatory MemorandumLocal Plans Expert Group (LPEG) reportDepartment for Communities & Local Government, Housing White Paper, ‘Fixing our broken housing market’Government response to the Housing White Paper consultation: 'Fixing our broken housing market'
Chief Planner’s ‘Planning Update Newsletter’ announces upward extension permitted development right summer consultation
The Government is to carry out a consultation this summer on a new PDR to extend existing buildings upwards to create new homes, according to the most recent planning update newsletter to chief planning officers.
The Planning Directorate Newsletter summarises this proposal alongside the Government’s recent programme of planning reforms covering: changes to policy & law; consultations; and local plan interventions.
The current NPPF consultation had already announced that there would be a consultation on such a PDR; there is already proposed policy support for such upwards extensions in the draft Framework. Upward extensions were also mentioned in the Housing White Paper. That proposal itself flowed from an even earlier consultation regarding potential ways in which upwards extensions in London might be supported through policy and/ or legislative changes.
These moves are all clearly giving an indication of the Government’s growing interest in making it easier for such extensions to obtain express or deemed planning permission throughout England.
Six year old planning permission quashed by High Court
In Thornton Hall Hotel Ltd, R (On the Application Of) v Wirral Metropolitan Borough Council, a planning permission issued in error six years ago by Wirral Metropolitan Borough Council was quashed by the High Court. The interested party had erected and retained three marquees within the Thornton Manor Estate leading to enforcement proceedings and an eventual planning application; the claimant was in effect a competing business.
In December 2011, the LPA had granted unconditional planning permission for the erection of three marquees in the grounds of Thornton Manor, without a time-limiting condition. Both the claimant and the LPA said that this omission was a mistake; the planning permission should have been subject to a condition of removal before the expiry of five years that had been decided on by Committee (meaning that the marquees would have had to be taken down not later than 19 December 2016). This condition had been omitted in error from the decision notice; nine other conditions which the Committee had decided to impose were omitted too.
The claim was brought long out of time therefore the issues were whether:
1. an extension of time should be granted;
2. if the time to appeal were extended, the merits of the claim were ‘properly arguable’; and
3. the claim should be allowed and appropriate relief granted.
2. if the time to appeal were extended, the merits of the claim were ‘properly arguable’; and
3. the claim should be allowed and appropriate relief granted.
Mr Justice Kerr on the first issue concluded:
‘I think justice requires that the extension of time be granted so that the interest of the public in the integrity of the planning process is not excluded from consideration by this court. The public interest lies in the court having power to rectify the error. That public interest is represented by the statutory planning powers of the LPA. On judicial review of the exercise of those powers where a mistake has led to illegality, its guardian is the Administrative Court.’
On the second, he concluded:
‘The correct analysis is that the permission, while not wholly void, was flawed by the erroneous absence of the conditions the committee had decided upon and, subject to a valid challenge by a qualified challenger, susceptible to quashing […] the court should now exercise its power to rectify the error by quashing the permission.’
His reasons included:
- an error had been made;
- as a Green Belt site, unconditional and permanent planning permission to erect the three marquees and keep them there would not have been granted and would not have been considered as being in the public interest;
- if he did not grant the relief sought, the marquees ‘need not be removed, ever’, which again would be contrary to the public interest;
- the interested party was aware of the error but chose to remain silent; and
- the interested party had signed a section 106 agreement ‘embodying the omitted conditions including the five-year time limit’. But the interested party proceeded in this litigation ‘as if it were not bound by the terms of that agreement’. The judge commented:
‘That seems to me only to compound the unconscionability of its position. It undertook in private law the same obligations as it denies in public law.’
The judge’s concluding comment on quashing the planning permission was that ‘the claim succeeds, though neither the LPA nor the interested party emerges with much credit’.
What is not clear from the judgment is why the LPA did not pursue a revocation or modification order to rectify their mistake.
What is not clear from the judgment is why the LPA did not pursue a revocation or modification order to rectify their mistake.
Thornton Hall Hotel Ltd, R (On the Application Of) v Wirral Metropolitan Borough Council
Inaccurate and inadequate committee report leads to quashing of planning permission
In R on the Application of Rainbird v The Council of the London Borough of Tower Hamlets, heard in the High Court, a planning permission for a 62-home development was quashed as a consequence of a local resident seeking judicial review. She was concerned about the impact that the new buildings proposed would have, given their scale, on ‘the sunlight and daylight enjoyed by her house and others’.
The judge considered:
• the validity of objections and how they are dealt with by officers and committees (grounds 1 and 2); and
• the specifics of daylight/ sunlight reports (ground 3).
Her challenge only succeeded on the third ground, that reports to members about the effect on sunlight and daylight of nearby properties ‘contained a number of flaws’. These flaws included the Committee being misled, them not being told about properties that would suffer a significant adverse effect on the daylight that they enjoyed, and the Planning Officer setting out conclusions that were not supported by analysis undertaken using vertical sky component (VSC) guidelines.
The conclusion that should have been reported to members was that there were 15 rooms in 11 properties that would suffer a significant adverse effect on the daylight which they enjoyed assessed in accordance with the VSC guideline. The development proposed would in total have had a detrimental impact on 23 rooms in 12 dwellings. Because this was not pointed out, no further investigation had been undertaken into e.g. what these rooms were used for, in order to understand the severity or otherwise of the impact and whether scheme changes could ameliorate the situation. It was therefore not known what conclusion the members would have reached in determining the application, if such matters had been considered and reported on.
Rainbird, R (On the Application Of) v The Council of the London Borough of Tower Hamlets
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The Lichfields perspective |
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Disclaimer: This publication has been written in general terms and cannot be relied on to cover specific situations. We recommend that you obtain professional advice before acting or refraining from acting on any of the contents of this publication. Lichfields accepts no duty of care or liability for any loss occasioned to any person acting or refraining from acting as a result of any material in this publication. Lichfields is the trading name of Nathaniel Lichfield & Partners Limited. Registered in England, no.2778116